What a Prenuptial Agreement Can and Cannot Do

Posted on : February 20, 2017, By: Erlina Perez

If you’re getting married or considering marriage, understanding what a prenuptial agreement is and what it can and cannot do is of the utmost importance. This is especially true if you’re coming into the marriage with a great deal of assets. The idea that a prenuptial agreement is “unromantic” is a misunderstanding of what the document is actually meant to do. The reality is that 50% or more of marriages end in divorce and it’s important that you protect yourself and your assets.

What a Prenuptial Agreement Can Do

A prenup can cover many of the issues brought forward in a divorce, including alimony, property division, and more. It can protect one spouse from the other’s debts and it can predetermine what is considered separate property and marital property. Prenuptial agreements can protect your estate and can keep family heirlooms within the birth family. Generally, prenups are used to address and resolve financial matters relating to a divorce in the event one occurs.

What a Prenuptial Agreement Cannot Do

Most notably, prenuptial agreements cannot include anything regarding children you and your spouse may have in the future. Child custody, visitation, and child support cannot be covered by a prenup — these things must be decided upon during the divorce, either through mediation or litigation. A prenuptial agreement also cannot discuss anything relating to illegal activity. If so, the entire prenup or parts of it may be considered null and void.

You also cannot waive the right to alimony in a prenuptial agreement or include details about personal matters such as who is responsible for what in the household or how children will be raised. Often, a prenuptial agreement that encourages divorce or includes personal details will be denied by a judge and will need to be redrafted.

How an Attorney Can Help

It’s important to speak with an attorney before drafting a prenuptial agreement and before signing one — and you and your spouse cannot have the same attorney. It’s critical that your lawyer have no conflict of interest when advising you on whether the details of a prenup are or are not in your best interests.

Contact the Erlina Perez Law Firm today to learn more about prenuptial agreements and how having one in place before getting married can help protect your rights and assets. Call now for a consultation at (201) 880-7070.